New York Estate Planning Guide for New Immigrants

If you are a new immigrant, a green-card holder, or a non-citizen living in New York, the short answer is this: you can — and should — build a complete estate plan here, and your immigration status does not bar you or your family from inheriting New York property. But the same status can trigger expensive mistakes if you plan as though New York treats every family the same. This guide walks through the most common, costly pitfalls and how to avoid them, while keeping one honest distinction front and center: estate planning is state law, immigration is federal law, and you generally want a different specialist for each.

Mistake #1: Assuming You Cannot Make a Valid New York Will

Many newcomers wrongly believe they need citizenship to sign a will. You do not. New York wills are governed by EPTL §3-2.1, which requires two attesting witnesses, the testator’s signature at the end of the document, and publication (telling the witnesses the document is your will). Citizenship is not on that list.

The real danger is dying with no will at all. Without one, New York’s intestacy rules under EPTL Article 4 decide who inherits — and that statutory order may send assets to relatives you did not intend, or complicate matters when heirs live abroad. Start with our estate planning overview and learn how a properly executed will protects your wishes on our wills page.

Mistake #2: Ignoring the Non-Citizen Spouse Tax Trap

This is the single most expensive mistake for mixed-status couples. For U.S. citizen spouses, the federal unlimited marital deduction lets one spouse leave assets to the other estate-tax-free. That unlimited marital deduction does NOT apply when the surviving spouse is not a U.S. citizen.

The standard fix is a QDOT (Qualified Domestic Trust), which preserves the deferral for a non-citizen surviving spouse. If you have significant assets and a non-citizen spouse, skipping this step can expose your estate to tax that careful planning would have deferred.

New York has its own estate tax to watch as well:

New York Estate Tax (2026)	Amount
Basic exclusion amount	$7,350,000
“Cliff” threshold (105%)	$7,717,500

The cliff is brutal: an estate that exceeds $7,717,500 loses the entire exemption, not just the excess. For families approaching that line, the difference between good and careless planning can be enormous.

Mistake #3: Choosing the Wrong Trust — or No Trust

Trusts in New York are governed by EPTL Article 7, and choosing the wrong type is a frequent error. A quick guide:

• Revocable living trust — avoids probate, but offers no estate-tax savings. Good for privacy and smooth administration.
• Irrevocable trust — used for tax reduction, asset protection, and Medicaid planning. Note the 5-year look-back for Medicaid eligibility, so timing matters.
• Special needs trust (EPTL 7-1.12) — protects a beneficiary with disabilities without disqualifying them from needs-based benefits.

Don’t forget your lifetime documents either: a durable power of attorney under GOL §5-1513 (the 2021 statutory short form) and a health care proxy under Public Health Law Article 29-C ensure someone you trust can act if you become incapacitated. Explore options on our trusts page.

Mistake #4: Confusing Estate Planning with Immigration Help

Foreign heirs and beneficiaries can inherit New York property. Non-resident or non-citizen status does not bar inheritance, though it adds documentation and tax-withholding steps when an estate is probated in the New York Surrogate’s Court.

Here is the pitfall: families often expect one attorney to handle both their estate plan and their immigration case. Those are separate practice areas. Because immigration is federal law administered by USCIS, an immigration attorney can represent families in any state, including New York. Our firm handles your New York estate and estate matters; for the federal immigration side, we honestly refer families to an immigration attorney in South Florida (Fitenko Law), who serves Russian- and Ukrainian-speaking families. Using the right specialist for each side is the smart, cost-saving move.

Frequently Asked Questions

Can I create a New York will if I am not a U.S. citizen?
Yes. EPTL §3-2.1 requires two witnesses, your signature at the end, and publication — not citizenship.

My spouse is not a U.S. citizen. What should I know?
The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to address this.

Can my relatives overseas inherit my New York property?
Yes. Non-resident and non-citizen heirs can inherit, but probate in the Surrogate’s Court may require extra documentation and tax-withholding steps.

Should my estate planning attorney also handle my immigration case?
Generally no. Estate planning is state law and immigration is federal law — use the right specialist for each.

Next Steps

For your New York estate and estate-planning needs — wills, trusts, QDOTs, and incapacity documents — consult Morgan Legal Group. You can review our estate planning overview or schedule a consultation at calendly.com/russel-morgan/30min.

For the federal immigration side of your family’s situation, consult the immigration attorney referenced above. Getting both pieces right, with the right specialist for each, is how immigrant and mixed-status families protect what they have built.